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Kelly and Minister for Immigration and Multicultural and Indigeno us Affairs [2003] AATA 249 (18 March 2003)

Last Updated: 20 March 2003

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/1367

)

GENERAL ADMINISTRATIVE DIVISION )

Date 18 March 2003

Place Sydney

Decision

.

[SGD] J Block

Deputy President

CATCHWORDS

IMMIGRATION - character test - discretion - expectations of the Australian community - whether discretion should be exercised in favour of the Visa Applicant

Migration Act 1958 - s.501

Direction No. 21 - Direction - Visa refusal and Cancellation under Section 501

Patel v Minister for Immigration [2002] AATA 78

Leha v Minister for Immigration [2000] AATA 1054

1. The decision under review is the refusal dated 19 August 2002 by the Respondent of a Spouse Visa applied for by Stuart Patrick Kelly ("the Visa Applicant") whose application was sponsored by his wife, who is the Applicant.

2. The Applicant was represented by Mr Nicholas Poynder, who is a Barrister and who received his brief directly from the Applicant. Mr Murray Allatt of the office of the Australian Government Solicitor appeared for the Respondent.

3. The Tribunal had before it the T-documents furnished pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:

4. The Respondent has furnished the Tribunal with an amended Statement of Facts and Contentions; it does not bear a date but it was sent under cover of a fax dated 20 February 2003. It contains a helpful chronology together with, and in clause 4, a record of the Visa Applicant's criminal convictions in Scotland. That statement is incorporated in this decision as follows:

"RESPONDENT'S AMENDED STATEMENT OF FACTS AND CONTENTIONS

1. References are to T documents ("T") and folios ("f").

2. The visa applicant, Mr Stuart Patrick Kelly, will be referred to as the applicant.

3. The review applicant, Ms Lisa Marie Kelly, will be referred to as the applicant.

4. The Department of Immigration and Multicultural and Indigenous Affairs will be referred to as DIMIA.

Facts

Relevant legislation

1. The Migration Act 1958 ("the Act") relevantly provides:

Section 501(1)

"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."

Section 501(6)

"For the purposes of this section, a person does not pass the character test if:

...

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct...

the person is not of good character..."

Section 499(1)

"The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers."

Section 499(2A)

"A person or body must comply with a directions under subsection (1)."

2. The Minister has issued written directions pursuant to section 499(1) of the Act as to refusal or cancellation decisions under section 501 of the Act: see Direction - Visa Refusal and Cancellation under section 501 - No. 21 ("Ministerial Direction").

Contentions as to law

1. In Irving v MILGEA (1996) 139 ALR 84 at 94, Lee J said:

"The words `good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact while the latter is a review of subjective public opinion."

2. In MIMA v Baker (1997) 45 ALD 136, Burchett, Branson and Tamberlin JJ considered the meaning of `general conduct'. Their Honours held that the term `general conduct' inherently implies universality but does not necessarily incorporate qualities of frequency or prevalence. Their Honours stated at page 142:

"Some instances of `general conduct'... displayed but once or twice, may lay character bare very tellingly."

Contentions on application of the law

1. The Respondent contends that the Applicant, by reason of his past and present criminal and general conduct, is a person who is not of good character, and is therefore a person who does not pass the character test as provided for under section 501(6)(c)(i) and (ii) of the Act. It is for the applicant to satisfy the Tribunal that he passes the character test (see section 501(1)).

2. The Ministerial Direction sets out certain matters to which decision makers should have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. At paragraphs 1.9(a) and (b) of the Ministerial Direction, two of the considerations to be taken into account are:

"Whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include ... breaches of immigration law ...

"Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement."

3. The respondent contends that that the applicant is a person who is not of good character and therefore cannot pass the character test by reason of:

(a) the applicant's criminal record, which includes 6 convictions over 4 years, where 3 of those convictions involved offensive weapons;

(b) the applicant's false statements on his incoming passenger cards when entering Australia on 10 November 2001 and 14 February 2002; and

(c) the applicant's failure to comply with the conditions of his electronic travel authority and depart Australia within 3 months of his arrival.

Contentions

1. If the Tribunal is not satisfied, which the respondent says it should not be, that the applicant passes the character test, the issue for determination by the Tribunal is as follows:

(d) should the decision of the Minister's delegate be affirmed by an exercise of the residual discretion under section 501(1) against the applicant; or

(e) should the decision of the Minister's delegate be set aside by an exercise of the residual discretion under section 501(1) in favour of the applicant.

2. In making this determination the Tribunal must have regard to the Ministerial Direction.

3. The Ministerial Direction relevantly provides:

"Part 2 - Exercising the Discretion

2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraph 2.3 - 2.16 and other considerations are set out in paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."

1. The Ministerial Direction, at paragraph 2.3, identifies three primary considerations that must be taken into account by decision-makers when deciding whether or not the non-citizen should be permitted to enter Australia. They are as follows:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

2. The respondent will address each of the primary considerations in turn.

(a) Protection of the Australian community

1. The Ministerial Direction provides that the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(i) the seriousness and nature of the conduct;

(ii) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(iii) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)

(i) The Seriousness and Nature of the Conduct

False statements

It is submitted that false statements on his incoming passenger cards should be viewed in an exceptional and serious light.

The Ministerial Direction makes specific reference to those offences involving the making of false or misleading statements in connection with entry or stay in Australia (see paragraph 2.6(c) of the Ministerial Direction). Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa. This offence provides for a maximum penalty of ten years imprisonment or a fine of $110,000, or both. The severity of these penalties is an indication of the seriousness with which Parliament views conduct of this kind.

In a number of decisions, the Administrative Appeals Tribunal has emphasised the importance of the observance of truth when dealing with officials in migration matters: see Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780 and Annencchini v Minister for Immigration and Ethnic Affairs, AAT 11838, 7 May 1997. In Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:

"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications in dealing with the many reasons for coming to Australia."

Overstay

The efficacy of Australia's migration system with respect to the grant of temporary or short stay visas, in the case of the applicant an electronic travel authority, depends in part upon the good faith of those who have been granted visas, to depart Australia in accordance with the conditions of their visa. Those who abuse this trust should not be seen to profit from their conduct.

The conduct of those who choose to remain in Australia, in defiance of the conditions applicable to their entry to Australia, operates to frustrate the purpose of the Act. Section 4 of the Act relevantly provides:

"(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance this object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter and remain."

The applicant has engaged in conduct contrary to both the specific provisions and the general object of the Act. In light of the discretion that the applicant now seeks to invoke, that is the grant of a visa to allow his entry and permanent presence in Australia under the Act, the applicant's conduct should be viewed with great seriousness.

Criminal record

Paragraph 2.6 of the Ministerial Direction provides that offences involving violence or the threat of violence are offences regarded as being very serious by the Government. Offences of this kind attract special attention under the Ministerial Direction, specifically see paragraph 2.6(n).

The applicant has been convicted of offences involving his possession of a knife, ammunition and a breach of the peace where an unspecified weapon was forfeited.

Paragraph 2.7(a) of the Ministerial Direction provides that the Tribunal should have due regard to the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence.

The applicant was convicted of six criminal offences in the United Kingdom in the period from 1995 to 1999, including for offences involving offensive weapons.

(ii) The Risk of Recidivism

The applicant has demonstrated a willingness to make false statements to DIMIA and to remain in Australia in defiance of the conditions applicable to his entry into Australia. Accordingly, there remains a real risk that he will do so again.

The respondent submits that the number of and period over which the applicant's offences were committed clearly demonstrates a likelihood that the conduct may be repeated.

(iii) General deterrence

There are cogent public policy reasons in favour of deterring those who may be minded to make false statements, fail to depart in accordance with the conditions of their visa and commit offences.

The respondent contends that by affirming the decision not to grant the visa to the applicant, other people would be generally deterred from engaging in the same or similar offences (see paragraph 2.11(b) of the Ministerial Direction).

(b) Expectations of the Australian community

The respondent contends that the seriousness of the conduct engaged in by the applicant is such that the expectation of the Australian community would be that the applicant's application for a visa should be refused.

It would not be the expectation of the Australian community that a person who commits criminal offences and then makes false statements in relation to those offences should be permitted to remain in Australia. Further, it would not be the expectation of the Australia community that a person who fails to depart Australia in accordance with the conditions on his visa should be entitled to a beneficial exercise of the discretionary provisions of the Act.

(c) The best interests of the child

The Tribunal should have regard to the terms of paragraph 2.16(b) of the Ministerial Direction and specifically the duration of the relationship between the applicant and his child and the length of separation. The applicant's child is three months old, and has been separated from the applicant for the entirety of that period.

The review applicant has stated that she and the child will have to join the applicant in Belgium if these proceedings are unsuccessful (see paragraph 37 of the applicant's statement). The Tribunal should have regard to the terms of paragraph 2.16(c), (i) and (j) of the Ministerial Direction. The child is three months old and has no impediment to adapting to her new circumstances in Belgium.

(d) Secondary considerations

Paragraph 2.17 of the Ministerial Direction provides:

"When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they generally be given less individual weight than that given to the primary considerations."

The considerations specified under paragraph 2.17 include:

"genuine marriage to, or de facto of interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;"

The respondent concedes that there are compassionate claims by the review applicant for the application to be approved. This, however, is clearly outweighed by the primary considerations applicable to this case.

Further, the review applicant was aware of the applicant's criminal record before she decided to marry him (see paragraph 18 of the applicant's statement).

(e) Other international obligations

The international obligations contended for by the applicant do no more than repeat the matters raised in paragraph 2.17(a) of the Ministerial Direction.

Conclusion

Accordingly, the respondent submits that the decision of the Minister's delegate which is now under review should be affirmed."

5. By way of balance, the Applicant's statement of facts and contentions dated 24 January 2003 is also included, as follows:

"FACTS

1. The visa applicant, Mr Stuart Kelly, is a citizen of the United Kingdom. He was born on 3 October 1977 in Irvine, Scotland.

2. The visa applicant came from a neglectful and violent family background. He left school in 1993 and he became involved in delinquent activities.

3. From 1995 until 1999 the visa applicant was convicted and sentenced in relation to the following offences[2]:

4. In November 2000 the visa applicant decided to move from Scotland to London, to create a better life and better opportunities for himself.

5. After moving to London the visa applicant met and formed a relationship with the applicant, who is an Australian citizen. In July 2001 the visa applicant and the applicant became engaged to be married, and a wedding date was set for November 2002.

6. The applicant was aware of the visa applicant's criminal history from the beginning of their relationship.

7. In August 2001 the visa applicant and the applicant decided to visit Australia. The visa applicant obtained an Electronic Travel Authority (ETA) visa through a London-based travel agent. He was not told to contact the Australian authorities about his criminal history, and at no time when obtaining this visa did he misrepresent his criminal history to the Australian authorities.

8. On 10 November 2001 the visa applicant and the applicant flew to Australia. When completing his incoming passenger card on arrival, the visa applicant failed to disclose his criminal history. They returned to the United Kingdom on 25 November 2001.

9. On 11 December 2001 the visa applicant lodged an application for a Fiancée visa with the Australian High Commission in London. The visa applicant disclosed that he had a criminal history in question 67 in the visa application form.

10. On 14 February 2002 visa applicant and the applicant again flew to Australia. The visa applicant travelled on the same ETA that had previously been granted to him in London. When completing his incoming passenger card on arrival, the visa applicant again failed to disclose his criminal history.

11. Shortly before leaving the UK, the applicant had discovered that she was pregnant. In addition, upon arriving in Australia, the applicant received news that her father had been diagnosed with cancer. Because of these developments, a decision was made to bring the wedding forward to 21 April 2002.

12. By letter dated 3 April 2002 and received on 23 April 2002 the visa applicant was requested by the Australian High Commission in London to provide details of his criminal history. By letter dated 8 May 2002 the visa applicant provided full details of his criminal history, together with character references.

13. By letters dated 4 June 2002 and 6 June 2002 the visa applicant was requested to comment on his failure to disclose his criminal history on his incoming passenger cards on 10 November 2001 and 14 February 2002.

14. In June 2002 the Department of Immigration in Sydney also advised the visa applicant that he had overstayed his ETA visa, which had expired after three months on 14 May 2002.

15. On 11 June 2002 the visa applicant attended the office of the Department of Immigration and was granted a bridging visa on the basis that he had made acceptable arrangements to depart Australia. This was subsequently extended to 8 July 2002.

16. By letter dated 13 June 2002 the visa applicant and the applicant provided an explanation as to the failure of the visa applicant to disclose his criminal history on the incoming passenger cards and his visa overstay.

17. On 8 July 2002 the visa applicant lawfully departed Australia and travelled to Belgium, where he is currently residing.

18. By a decision dated 19 August 2002² a delegate of the respondent refused the visa applicant's visa on the grounds that he did not pass the character test. The delegate considered that the visa applicant did not pass the character test under s. 501(6)(c) of the Migration Act 1958 (Cth) ("the Act"), because of:

a. his previous criminal history;

b. his failure to disclose his criminal history on his incoming passenger cards in November 2001 and February 2002; and

c. his failure to depart Australia upon the expiry of his ETA on 14 May 2002.

19. On 8 October 2002 in Sydney a daughter was born to the applicant and visa applicant. The visa applicant has not yet seen his daughter.

CONTENTIONS

Does the visa applicant pass the character test?

20. The character test is defined in s 501 of the Act, and relevantly provides that:

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: "Character test "is defined by subsection (6).

(6) For the purposes of this section, a person does not pass the character test if:

...

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character.

21. Guidelines on the implementation of the character test are provided in Direction No. 21: Visa Refusal and Cancellation Under Section 501 dated 23 August 2001 ("Direction No. 21").

22.The relevant guideline on s. 501(6)(c)(i) (past and present criminal conduct), at par. 1.8 of Direction No. 21, provides:

In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:

(a) the nature, severity and frequency of the offence/s;

(b) how long ago the offence/s were committed;

(c) the non-citizen's record since the offence/s were committed, including:

* any evidence of recidivism or continuing association with criminals;

* a pattern of similar offences; and/or

* pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents.

23. The relevant guideline on s. 501(6)(c)(ii) (past and present general conduct), at pars. 1.9-1.11 of Direction No. 21, provides:

1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

* engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

* continual evasion or non-payment of debt;

* continual disregard as to payments of family maintenance;

* involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or

* involvement in war crimes or crimes against humanity.

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:

(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

* whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or

* the seriousness of the offence with which the applicant has been charged; or

(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).

24. It is submitted that a proper application of s. 501(6)(c)(i), as informed by Direction No. 21, suggests that the visa applicant should not be regarded as being not of good character because of his criminal history. In this respect, the following matters are relevant:

(a). The nature and severity of the offences were low. They were essentially summary offences involving delinquent acts, and they were not regarded by the court as particularly serious, as illustrated by the relatively low penalties. This was recognised by the delegate.² The types of offence in this case are certainly not included in the list of "very serious offences" referred to in par. 2.6 of Direction No. 21.

(b). While the offences were relatively frequent over a short period of time, there has been no recurrence of any such offence since the visa applicant's last court appearance in November 1999.

(c). The offences should be seen in the context of the visa applicant's difficult upbringing, the poor company he kept in Scotland, and his own efforts to get away from the influences that led to his offending. The penalties for each offence suggest that, while the seriousness of the offences were still relatively low, they were slowly escalating. To his credit, the visa applicant moved away from the environment in which he had been offending, "started a new life" for himself, and all the indicators suggest that he has successfully rehabilitated.

25. The visa applicant's failure to disclose his criminal history on his incoming passenger cards raises issues under s. 501(6)(c)(ii), and will no doubt be of greater concern to the Tribunal.

26. It is of course axiomatic that all non-citizens are under an obligation to be absolutely truthful in their dealings with immigration authorities, and the visa applicant's failure to disclose his conviction in his passenger cards was clearly in breach of this obligation.

27. In the present case, the visa applicant has explained his failure to disclose his history on his shame and embarrassment and his wish to put that part of his life behind him, and his failure to realise that he was filling out an important government document.

28. In many cases, an explanation such as that given by the visa applicant might be regarded with scepticism. However, in the present instance, it is respectfully submitted that the Tribunal should consider the context of each case. It is highly relevant that on 11 December 2001, only a month or so after the visa applicant had erroneously filled out his first passenger card on 10 November 2001, he honestly answered question 67 in his visa application form, ticking the "yes" box to the question, "Have you ever...been convicted of a crime...?".. Then, having made this disclosure, two months later when again entering Australia on 14 February 2002, the visa applicant again incorrectly filled out his passenger card. This lends support to the contention that the overall conduct of the visa applicant was not to mislead or deceive the Australian authorities as to his criminal past, since he had disclosed the fact of his convictions in arguably the most important of his documents, his visa application. If anything, the visa applicant was in denial; he was deceiving himself. His failure to disclose his convictions on his passenger cards may have been foolish, naïve and wilfully blind, but it was not necessarily a dishonest attempt to conceal his criminal history from the immigration authorities, since at around the same time he had made formal disclosure that he had a criminal history.

29. The visa applicant's overstay, for less than a month from 14 May until 11 June 2002, must also be seen in its factual context. In the first place, the visa applicant had erroneously thought that having made his application for a Fiancée visa allowed him to remain in Australia until it had been processed. Moreover, much had happened at this time to suggest that it would have been easy to overlook the continuing validity of his visa: the applicant had found out that she was pregnant, her father had been diagnosed with a life-threatening disease, and the wedding had been brought forward and had been celebrated. There was no advantage to be gained by the visa applicant in staying in Australia unlawfully: he had a valid visa application pending which would no doubt be put at risk by unlawful conduct, and it would have been comparatively easy to get his ETA renewed because of the circumstances that he and his wife were in at the time. These factors, along with the visa applicant's conduct when notified of his overstay, in promptly attending the Departmental offices and obtaining, then renewing, his bridging visa before leaving Australia lawfully, are consistent with a person who has genuinely overlooked his migration status and has done the right thing to legalise his status before leaving voluntarily.

Should the visa applicant be granted a visa in spite of any finding that he does not pass the character test?

30. It is submitted that, even if the visa applicant does not pass the character test, he should nevertheless be granted a visa.

31. Guidelines for the exercise of the discretion to grant a visa are contained in Part 2 of Direction No. 21.

32. Three "primary considerations" are identified in paragraph 2.3 of Direction No 21:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

Protection of the Australian community:

33. Three factors are identified in paragraph 2.5 of Direction No 21 as being relevant to the "protection of the Australian community":

(a). The seriousness and nature of the conduct.

(b). The likelihood that the conduct may be repeated.

(c). Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

The seriousness and nature of the conduct:

34. As discussed above, the visa applicant's criminal conduct is at the lower end of seriousness, and is certainly not included in the list of "very serious" offences in par. 2.6 of Direction No. 21. This is also reflected in the low penalties imposed by the Court on each occasion.

35. In her decision refusing the visa, the delegate sought to characterise the visa applicant's failure to disclose his convictions on his passenger card and his visa overstay as a continuation of his unlawful activity. It is respectfully submitted that this is not an appropriate way of dealing with the issue. In the first place, the criminal offences from Scotland were totally different in character to the migration conduct in Australia. The former were "criminal conduct" to appropriately be dealt with under s. 501(6)(c)(i) of the Act, while the latter were "general conduct" to appropriately be dealt with under s. 501(6)(c)(ii) of the Act. There is no suggestion that the visa applicant has or will be charged with offences under the Act as a result of his migration conduct. Secondly, the circumstances of the visa applicant's migration conduct suggest that it was done primarily as a result of foolishness and self-deception in relation to the passenger cards and genuine oversight and misunderstanding in relation to the visa overstay.

The likelihood that the conduct may be repeated:

36. The evidence strongly suggests that there is no likelihood that the visa applicant's criminal conduct will be repeated. He has consistently expressed remorse and shame over the incidents, he successfully took himself away from the influences he had in Scotland and found a new life, and he has not re-offended since leaving Scotland.

37. There is also strong evidence to suggest that the visa applicant will now be more careful to observe his obligations under the migration law. The circumstances of his migration breaches suggest that he had not sought to deliberately deceive the migration authorities, and he has shown insight and has expressed genuine remorse for what he did.

General deterrence:

38. The element of general deterrence, in the context of the protection of the Australian community, is directed to cases involving persons who have committed offences in Australia or in relation to their migration to Australia: see Patel v. Minister for Immigration [2002] AATA 78 at [47], per Gray J:

In the consideration of the cancellation of existing visas held by such offenders, or the possible grant of new visas to them, the decision-maker must have in mind the need to bring home to other non-citizens already in Australia the consequences to them of conduct that would cause them not to pass the character test. In this way, non-citizens in Australia will be dissuaded from such conduct if they wish to remain in Australia, either by retaining their existing visas or by applying successfully for subsequent visas. The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote.

39. It is therefore submitted that, in relation to the visa applicant's previous criminal conduct, the element of general deterrence will have no application.

40. In any case, it is submitted that the length of time since the offences were committed and the obvious rehabilitation which has occurred since suggests that the cancellation of the visa on these grounds would serve no useful deterrent purpose: cf Richards v. Minister for Immigration [2002] AATA 90 at [33], per DP Handley.

41. The Tribunal will of course recognise that there is an element of general deterrence in refusing visas to applicants who have not complied with their obligation to observe the migration law. Reference has already been made to the factors which mitigate against the seriousness of the visa applicant's failures in this respect.

Expectations of the Australian community:

42. Paragraph 2.12 of Direction No 21 suggests that "visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia."

43.. However, the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501. As emphasised by Deputy President McMahon in Leha v Minister for Immigration [2000] AATA 1054, at [2.12], there is "a general expectation in the community that the Act would be administered fairly and humanely".

44. It is submitted that the compassionate response of the Australian community would be particularly in evidence where the offender has obviously rehabilitated and enjoys support from those in the Australian community who know him, and who has married an Australia citizen and who has a child who is an Australian citizen.

The best interests of the child:

45. The best interests of the child, Sara Grace Kelly, will also be relevant in the present case.

46. There is no suggestion in the present case that the visa applicant and the applicant will separate if the visa is refused. It cannot therefore be said that the child will lose contact with one of her parents as a result of any visa refusal.

47. It is also difficult to argue that the child would objectively be worse off if she had to grow up in the United Kingdom or Europe. Clearly, by most economic indicators the standard of living in the United Kingdom and Europe is at least equal to those in Australia. There is, however, evidence of less tangible advantages to living in Australia, in the applicant's reference to giving their child "a life she deserves where the sun is always shining and she can thrive in the warmer weather".

48. There are also other reasons that support a contention that it would be in the best interests of the child for her to be able to grow up in Australia:

(a) The child has been born in and has lived the first few months of her life in Australia, surrounded by a loving and supportive extended family. Not only would she lose any possibility of a close relationship with her Australian family; given the visa applicant's family history it is doubtful whether such a beneficial environment could be provided for her in the United Kingdom or Europe.

(b) The evidence is that the visa applicant has found a "new life" with the applicant in Australia, where he is supported and accepted in a way that did not occur in the United Kingdom. To the extent that his happiness, stability and continued rehabilitation may impact upon the quality of the child's life, it would be in the best interests of the child that she be allowed to live in Australia.

(c) If the visa applicant is refused a visa and the family is forced to live in the United Kingdom or Europe, the child will be denied the opportunity to be brought up in the country of her birth, citizenship, and heritage, at least until she is old enough to live on her own. She would grow up as "a European", rather than "an Australian".. This alone would be a lifelong and significant loss to the child.

Other considerations:

49. The following "other considerations" referred to in paragraph 2.17 of Direction No 21 weigh in favour of the visa applicant:

(a) Under paragraph 2.17(a), the visa applicant has shown by his character references that he has already established close contacts in Australia, both within the applicant's family and in the community. These would be lost if he were refused a visa.

(b) Under paragraph 2.17(b), the visa applicant's marriage is clearly a genuine marriage characterised by mutual love, commitment and support.

(d) Under paragraph 2.17(c), the evidence is that a visa refusal would cause great hardship to the applicant. She would have to travel with the child to the United Kingdom or Europe and establish a new life without the family and community support that she enjoys in Australia. She would lose close contact with her family and friends in Australia. She would have to leave the country of her citizenship and her preferred country of residence.

(e) Under paragraph 2.17(h), the evidence is that the applicant has recently been of good conduct and that he has fully rehabilitated since leaving Scotland.

(f) Under paragraph 2.17(j), there are significant compassionate circumstances in relation to the visa applicant's past, his successful attempts to find a new life, and the desire of he and the applicant to permanently reside in Australia.

(g) Under paragraph 2.17(k), the visa applicant had never previously been advised of the visa refusal provisions.

Conclusion

50.The Tribunal is therefore urged to set aside the decision under review."

6. Exhibit A1 which is a statement by the Applicant dated 4 January 2003 reads as follows:

1. I was born on 14 October 1973 at Parramatta, New South Wales.

2. Although I was born and raised in Australia, I had a very heavy Italian influence in my life as my parents both originate from Italy. My father migrated to Australia in 1964 at the age of eighteen with his family. He was a third year electrical apprentice and was employed as an apprentice soon after arriving in Sydney. He completed his electrical apprenticeship and later attended TAFE where he completed courses in air conditioning and refrigeration.

3. My mother arrived in Australia with her family in 1956 at the age of nine. She completed her primary and secondary schooling in Sydney. Then worked in Retail until she left work to become a full time mum.

4. My parents met in 1968 and were later married in 1971.

5. My father started his own Electrical Contracting business in 1973, then later branched out into refrigeration and air conditioning. He still runs the same successful business today.

6. I am the eldest of three children. My brother Paul was born in 1977. He is in the legal profession today and practices as a Solicitor after graduating from the University of Technology, Sydney in 2001. He also graduated from Sydney University in Economics in 1998.

7. My younger brother Steven was born in 1978. He is employed today in Finance and continues to study part time to further his qualifications in this area.

8. Being brought up with Italian influences, we were taught that one of the most important things in our lives was `family' and that no matter what, our parents would stick by us and try to guide us in the right direction. They have always tried their best for my brothers and myself and do what they can to see us happy. So when we had the news that my father had been diagnosed with lymphoma (a type of cancer) it was quite a shock to all of us as you never think something like that could happen so close to home. But we tried to remain positive for my father and help him deal with his situation as he went through chemotherapy treatment. Recently my father was given the good news that he is in remission. He is still having regular checks, and we are all hoping that he will remain in good health.

9. I went to school at Cerdon College, Merrylands, and completed my HSC in 1991. I then completed a Diploma in Graphic Design at the School of Visual Arts, in 1992. After completing my Diploma, I was employed in the printing industry and later in graphic design.

10. In September 1998 I decided to go to London, to try something new, to experience new things and a new lifestyle, to work and also to do some travelling. Although my family wasn't happy with my decision to go to the UK, they always supported me and kept in close contact with me while I was away.

11. When I arrived in the UK, I stayed with a friend in North London for some time in a share apartment. At first I found it very hard to adjust but things became easier. I got a job as a temp doing Graphic Design. It was great, most of the time there was always work and I got to know my way around London pretty fast moving from company to company and meeting new people. I had a lot of long term contracts too, so it was good to have stable work most of the time.

12. A year or so later I moved to Greenwich, as a friend from work had a room in her apartment that she wanted to let out. Almost a year later I met Stuart.

13. Stuart and I met in November 2000. He was the friend of my flatmate's boyfriend. Stuart would frequently call the apartment to speak to his friend and on more than a few occasions we spoke if I answered the phone. A few months later Stuart had decided to move to London. He was to stay in our apartment until he found work and got settled. From the moment we met Stuart and I had a special friendship. The more time we spent together, the closer we became. We are now virtually inseparable.

14. Stuart was up front and honest with me about his past from the very beginning. He told me all about the troubles he had been in with regards to his criminal convictions as well as his upbringing, his family life and his relationship with his parents. That is one of the things I love most about Stuart, his honesty and his ability to admit if he is wrong and apologise. That's probably why we get along so well. We hardly ever have disagreements about anything.

15. In January 2001 I went with Stuart back to Scotland where we stayed with his brother and I got to meet the rest of his family and see where he grew up. On our return to London we decided to get our own apartment together as up until then we had still been sharing with my flatmate and her boyfriend.

16. In February 2001 I had to return to Australia for a friend's wedding and to see my family, as by this time it was just over two years that I had not seen my family. Stuart remained in London as I had planned this trip in September 2000, before we had met. It was really hard being apart from one another.

17. In June 2001 Stuart and I travelled to Scotland for Stuart's father's 50^th birthday. Although Stuart doesn't get along with his father, he felt he should do the right thing and be there for the family. Later that month, my brother Steven visited us in London and spent time with Stuart; they got along really well. Some weeks later, we travelled to Belgium where I was bridesmaid for my friends Greet and Steve's wedding. We had a great time there and Stuart got to meet all my friends there.

18. Then in July 2001 my brother Paul arrived in London with friends while on holidays. We spent time with them and Stuart had a lot of fun getting to know the boys.

19. It was just after this time that Stuart and I decided to get married. We planned the wedding for November 2002 in Sydney and Stuart decided he would come back with me to live in Sydney as I had no intention to remain in London for the long term. We got in contact with Global Visas who advised us on the procedures for Stuart to obtain a Fiancé Visa. So we gathered all the relevant documents needed for the application, and in the meantime planned a trip to Sydney in November 2001 so Stuart could meet my parents and see if he liked Sydney as he had never travelled to Australia before.

20. After Stuart had visited Australia and met my family, and we had made arrangements for the wedding in November the following year, we returned to London where Stuart completed the medicals required for the visa application. We lodged the application through Global Visas in early December 2001, and planned to travel back to Sydney in February 2002. After discussing our plans with Global Visas, they advised us that there would be no problem to travel to Sydney while the visa was being processed and that Stuart would only need to travel out of Australia to New Zealand when the visa was granted. So we made the arrangements. We were really excited at the thought of come back to Sydney together to start a life here and get married. We spent that Christmas and New Year with Stuart's family in Scotland then travelled back to London.

21. We were due to leave London in early February 2002. However one week before our departure I discovered I was pregnant. Needless to say, it was a big surprise and definitely not planned but we were happy and welcomed the fact that we would be parents and have a baby together.

22. Once we returned to Sydney we told my parents of our news, of course they were surprised too, but they also had news for us. My father had been having tests for suspected cancer. The doctors were not too sure the exact nature of his condition and a week or so later it was diagnosed as Lymphoma. Unfortunately they were not able to operate to remove the infected area and my father began chemotherapy almost immediately.

23. So with the happy news of our pregnancy and the forthcoming wedding everything seemed dimmed by the fact that my father, a man who seemed a fit and strong man had been knocked down with this unpredictable life threatening disease.

24. We decided to bring forward our wedding to 21 April 2002, not only for the fact of my fathers illness and wanting him to be able to celebrate with us while his health was still allowing him to do so but also for the fact that our baby was due on 1 October 2002 and we wanted to be married so our child could come into the world to a real family with married parents. Also there was the fact that I don't think I would be able to cope with a wedding six weeks after giving birth.

25. Our wedding day was perfect. We couldn't have asked for a better day, everything went to plan. My friends Greet and Steve travelled over from Belgium. Greet was my maid of honor. And Stuart's family travelled over from Scotland for the occasion. Stuart's brother Andrew was his best man and we had Stuart's niece as flower-girl. It was without a doubt a very special day that we will never forget.

26. We had notified Global Visas of our plans to bring the wedding forward, and in early March 2002 they submitted a revised letter from our priest notifying the change of date for the wedding and also a doctors certificate regarding my pregnancy.

27. A few weeks before the wedding Global Visas advised us that they had received a letter from the Australian High Commission regarding Stuart's past convictions. They (Global Visas) said he would need to provide details about his convictions and what happened on each offence. They also said he would need to submit character references. Although we did not have a copy of the letter we began to gather the information and references. We did not receive a copy of this letter from Global Visas until the 23^rd April. The letter from the High Commission was dated 3^rd April.

28. We were then notified in another letter from the High Commission dated 4 June 2002 that Stuart was now at this time unlawfully in Australia. The letter also noted the inaccurate completion of the passenger cards Stuart had filled out when entering Australia.

29. Stuart and I were totally unaware of over staying his visa. Not only were we not made aware of the procedures to take before it expired but with everything that had been happening in our lives with the wedding, our pregnancy and my father's health, the issue of the visa never entered our minds.

30. We acted immediately after being notified and went to the Department of Immigration office in Parramatta where they advised Stuart to leave Australia by 9 July 2002.

31. The problem with filling out the passenger card incorrectly was something that could have been avoided but unfortunately Stuart felt ashamed of his past and did not want to disclose his convictions. I'm sure if he knew at the time it was an offence to do this and there would be serious complications he would have done so but he didn't mean to mislead anyone or lie. He was just embarrassed about his past.

32. Stuart left Australia on 8 July 2002 and went to stay with our friends in Belgium who had kindly offered him accommodation until we knew what Stuart's fate was regarding the visa.

33. Unfortunately, being seven months pregnant, I was not able to go with Stuart as I was advised not to travel and the time Stuart was to be away was indefinite. So I had to face the last weeks of my pregnancy without my husband. But we lived in the hope that a decision would be made soon and that Stuart might have a visa to travel back to Australia before the birth of our baby. I was able to do a little casual retail work organised through a close friend, but I was not able to work beyond 34 weeks of pregnancy as I was always on my feet and becoming very tired.

34. Then the news came that Stuart was not to be given a visa and that he would not be here for the birth of our first child. We were devastated. The prospect of going through the birth without my husband crushed me and what made things worse was not knowing when he would be able to see his child.

35. I gave birth to our daughter Sara Grace on 8 October 2002. I had a very long 30 hours in labour, with my mother by my side for most of it. My family were keeping Stuart up to date on the progress and how I was doing. It wasn't easy but at 9.34pm Sara was born. I could not wait a minute more to tell Stuart and while the doctors proceeded to do my stitches I called Stuart to tell him he had a beautiful healthy daughter.

36. It has been really hard for me to cope with our separation. More so now that Sara has arrived. Not a day goes by that I feel guilty knowing Stuart is missing out on so much, seeing his little girl grow, doing all the things that babies do. I know it is hard for him too, to know he has a daughter and he isn't able to hold her and watch how she changes everyday and looks more and more like her dad. But I take lots of photos and send them to him and he always talks to her when I put the phone to her ear so she can hear her dad's voice. I can't wait for the day we can be together again; the day Stuart meets his daughter and can really feel like a dad.

37. So now while we await a decision on our future. If this appeal is unsuccessful Sara and I will have to join Stuart in Belgium where he has decided to stay for the time being. He has an apartment there now and is working very hard as a landscape gardener, doing lots of overtime not only to keep busy but also to make some extra money to send to me to look after Sara. The thought of going back to Scotland does not appeal to us, and we would not have the support there that we would like for our daughter.

38. We want the best for Sara, we want her to be surrounded by family and friends who love her. To give her a life she deserves where the sun is always shining and she can thrive in the warmer weather. I do not want to leave Sydney. Not only would it be difficult to leave my family and friends who have been a great support to me over the last few months but also I would feel terrible to take Sara away from her grandparents and the rest of the family; especially my dad who I feel seems a lot brighter in spirit now that he has a relationship with his first grandchild.

39. Stuart has also become close with my family and sees how we help one another, especially over the last few months as my parents have supported him and given him the chances his own parents never gave him in life. He feels like one of the family too.

40. I have family support, so that if in the near future I want to return to work I can leave Sara in trusting hands and not feel bad. And there are so many opportunities here for Stuart to pursue his dream to have a quiet life and continue to work hard, support his family and be happy.

41. Stuart and I have been together now for just over two years and we have been through a lot in that time. From the time we first met I could see that he is someone special. He has always been honest with me about himself. He speaks his mind and can admit when he is wrong about something. He is a very loving, caring and sincere person, and that is something that he has taught himself as I don't think he was ever taught those qualities when he was growing up.

42. The Stuart I know is not the same person that left Scotland over two years ago. I don't think I would have like to have known that person, so from what I can see he has changed a great deal. The fact that he wanted to remove himself from a life where he could see no future makes me proud to know he wanted to better himself. He has looked back on his past and seen how his behavior was not something to be proud of. He is embarrassed about his convictions and trouble with the law.

43. I would like to think that I have helped him become a better person but he is the one who looked at the bigger picture and saw the life he wanted to have Stuart is a very hard working man and I know he will be a great provider for our family. He has shown such courage, especially over the last few months as we have been separated and he is unable to see his daughter. I am very proud to say Stuart is my husband. I know he is eager to be a great father for Sara, to do his very best for her and give her the life he never experience growing up as a child. I love Stuart very much and I can't wait for the day we can be together again and start our life as a family."

7. Exhibit A2 which is a statement by the Visa Applicant dated 26 December 2002 reads as follows:

" STATEMENT OF STUART PATRICK KELLY

My personal background

1. I was born on 3 October 1977 at Irvine, a town of about 35,000 people south-west of Glasgow, in Scotland. We lived there until 1981, when my family moved to Barrhead, Glasgow, where I stayed until November 2000.

2. My parents were married in 1972. My father worked as a store person in a factory in Barrhead. My mother was a housekeeper in a hotel in Glasgow. My older brother Andrew, who was born in 1973, is working today as a landscape gardener in Barrhead.

3. The harmony in the family was never very good. My parents would spend a lot of time in the local pub, there was always lots of arguing, and my father used to beat my mother, my brother and myself.

4. When I was growing up there were many confrontations with my father which led me to rebel against him and I often found myself in trouble not only with him but also with the law. But instead of my father trying to help me and teach me to be a better person, he would beat me up and kick me out of the family home.

5. Each time my father beat me it made me rebel more. My mother was a weak person and did not ever interfere because of her fear of my father.

6. Looking back I feel that if only my father had spent a little more time with me, guiding me in the right direction in life, I would not have become involved with the people and situations as I did.

7. I went to school in Barrhead, where I started mixing with the wrong crowd. At that time I was about twelve years old and thought it was cool to be with the "in-gang", teasing teachers, acting as a fool and causing trouble as much as possible. I left school in 1993.

8. After leaving school I was unemployed for a time, before I found myself a job as a landscape gardener.

9. As I grew up I found myself living in and out of the family home for years. When I was not at my family home I would stay at a friend's apartment. Thinking back I now understand that this was not the best solution, because For the apartment seemed to be the ideal place for the "wrong crowd" to gather out of view of the adults. I seemed to have found myself in a hole, surrounded by nothing but bad people and trouble.

10. In November 2000 I decided to move to London. I was sick of the life in Scotland and I wanted to create a better life and better opportunities for myself. Deep down, I knew there was something else out there for me, a life better than I had lived up until then and a better life than the one my parents had shown me.

The beginning of my relationship with Lisa

11. When I arrived in London I stayed with a friend of mine. At the time, there were three people living in a share house, including an Australian girl, Lisa Spezza. I had previously spoken to Lisa on the telephone when I was still in Scotland, as I used to phone my friend in London and occasionally Lisa would answer, so we would chat.

12. When I first met Lisa I knew there was something special. The more I got to know her, the more I got involved and the more we seemed to have a lot in common. Even though we came from very different backgrounds, we wanted the same things in life and had thoughts very similar to each other.

13. In January 2001 I made my first trip back to Scotland since moving to London. I took Lisa with me because I wanted to show her the environment and the circumstances I grew up in and also what my parents were like. As our relationship became more serious I wanted her to know what background I grew up in so that there would be no secrets between us. While in Scotland, we spent a lot of time alone; something that had not happened much before. This time showed us how well we got along and how good it was to be together, just the two of us. This was something new that I had never experienced before.

14. After Lisa and I returned to London, we moved into our own apartment together. From this time, we began to cohabit as a defacto couple. We discovered how intense life could be, not having much but having each other.

15. In July 2001 I asked Lisa to marry me. That seemed to be, as far as I am concerned, the next step to stabilise our relationship on our path of life. We were very happy together and felt the time was right.

My first trip to Australia

16. In August 2001 we decided to go to Australia so that I could meet the rest of Lisa's family. I had already met her two brothers in London earlier that year.

17. The main reason for this trip was to show me what Australia was like and to see if it would please me to live there. We intended to return to London as we kept the apartment and we also kept our jobs. I had already started gathering information for my visa application and I planned to lodge it on our return to London.

18. By this time I had told Lisa absolutely everything about my criminal history. Everything from breach of the peace to being in possession of ammunition.

19. At about this time I requested a letter from Strathclyde Police, in order to gather the information needed to obtain a visa. It was requested that police records be submitted with the application.

20. In order to obtain my visitor visa we used the services of Travelbag Travel Agency, Piccadilly Circus, in London. We found out about them because they were situated close to Lisa's work and they had good references from people we knew. We booked flights in the normal way.

21. It has been alleged by the Department of Immigration that I was told by my migration agent that I had to approach an Australian Embassy to inform them of my criminal history when I applied for an Electronic Travel Authority. Travelbag Travel Agency organised my visitor visa and I was never asked any questions by them about my previous criminal convictions, nor was I advised that I should approach the Australian Embassy if I did have a criminal history. The travel agent did not state any conditions at the time and I was not informed of such conditions. All that I was told by my travel agent was that if the ETA was not obtained and presented in Australia on arrival, I would be fined.

22. We flew into Australia on 10 November 2001. On our arrival we had to fill in a passenger card. I must say I felt very embarrassed about my criminal past.. In my mind all these things were far away from what my life was now. These things seemed for me to have happened in another life. Since I had met Lisa these bad memories from my painful childhood and my agitated and violent adolescence had faded away in my memory. At the time I did not realise the importance of filling out the card and I was not aware that it was an official government document. I never wanted to mislead or deceive anyone. I was ashamed of my convictions and I thought at the time that not declaring them would not harm anyone. I now know that I was very wrong.

23. As soon as I landed in Australia I felt as if I belonged there. I was very impressed. We stayed with Lisa's parents and the aim was to spend time and get to know my future-in-laws. Of course we did lots of sight seeing as well. The contact with Lisa's family was very warm and welcoming, something I never experienced before in my life. At this time we also made some arrangements for our wedding which was to be in November 2002. Lisa's parents also had a BBQ with close relatives to celebrate our engagement.

24. As I liked Australia very much and Lisa had no plans to stay much longer in London, far away from her family, the idea of moving to Australia became more realistic. Also the idea of at last being accepted as part of a family was very overwhelming for me.

25. At that time, in my mind, my criminal past was history, I had been punished for my acts and I had left all that behind in Scotland.

26. When we left Australia on 25^th November 2001 I felt as if I had found what I always had been looking for. I had a loving soon to be wife, a new family that cared for me and opportunities look forward to.

Application for Fiancé visa

27. On 11 December 2001 Lisa and I lodged an application for a Fiancé visa with the Australian High Commission in London. This time we used Global Migration Services, who we had found out about from an advertisement in TNT magazine, a free weekly publication for Australians and New Zealanders in London which Lisa used to get.

28. Global Migration Service told me that the fact of having a criminal record was no problem to migrate to Australia, as long as I hadn't been in prison. They said that I only had to produce a letter from Strathclyde Police confirming my criminal history. As it was these people's job to inform the candidates for immigration about what to do, I trusted them, as I had no experience in this matter.

29. Global Migration Services also advised us that it was possible to return to Sydney and wait for the visa application to be processed there. The only thing I had to do was travel to New Zealand to obtain the visa once it had been granted, then I was able to come back to Australia.

My second trip to Australia

30. On 14 February 2002 Lisa and I returned to Australia. My ETA was still valid but once again we were not told of any need to approach the Australian Embassy to disclose my criminal history.

31. Only a week before we were due to leave for Australia, we discovered that Lisa was pregnant. We were both very surprised. It was definitely not planned but we felt happy about it and in fact were very proud to become parents. Happy also because we were leaving to start a new life and the baby was already part of it.

32. When we left London for Australia, I felt as if the bad chapter of my life was over and the good part was just beginning.

33. Upon arriving in Australia I again was embarrassed about my past life and filled out the Passenger Card incorrectly. Once again, I did not think of the consequences of this at the time.

34. When we arrived in Australia we were given the news that Lisa's father had been diagnosed with cancer. This news was a shock to both of us. We did not know how Lisa's father would cope with this life threatening disease.

35. Lisa and I made a decision to bring the wedding forward so that Lisa's father could attend the wedding in the best possible health, as we didn't know what the future would bring. Also we felt it would be best for our child if we were married.

36. The time before the wedding was very hectic because of the illness of Lisa's father and arranging the wedding was really occupying our time. But the general feeling was that I was part of the family and that we all had to go through these hard times together. Hoping for better days to spend together as one family.

37. Our wedding day was great. I felt it was the right thing to do to include my family in our wedding, and they travelled from Scotland to be there. We had a really special time and I felt very proud to be marrying Lisa and to become part of her family. They had accepted me as one of their own.

38. In early April 2002, Global Migration told us that they had received a letter Australian High Commission asking me to provide a statement in relation to my criminal convictions, which they later faxed to us. I was able to get character references from my solicitor in Glasgow, my brother-in-law Paul Spezza, who is also a solicitor and a reference from Andrew Murphy, who is a Police Officer and a close family friend.

39. Later on, in June 2002, we received another letter from the Australian High Commission regarding my failure to fill out my Passenger Cards correctly. I felt like I had let Lisa and her family down at this time, by not filling out the Passenger Card and declaring my past convictions. I felt ashamed and irresponsible.

40. It was at this time that I was also notified that I had overstayed my ETA visa. Global Migration Services never told us that it was only possible to stay in Australia for three months on an ETA. I thought the fact that I had applied for a Fiancé Visa allowed me to stay until it was processed, which I did not think would take very long at all. I didn't realise how bad this situation was until Lisa, her parents and myself went to the Department of Immigration and they advised me to leave the country by 9 July 2002.

I immediately made arrangements to leave Sydney on 8 July 2002, and travelled to Belgium where our friends had offered me a place to stay while I awaited a decision about my visa.

41. I am really sorry that I did not take responsibility to find out the correct procedures. With everything that was going on at the time - our wedding and my father-in-law's illness - I did not even think about overstaying. If I had known, I would have done something earlier about this before the three months were over.

42. It was so hard saying goodbye to Lisa and not knowing how long I would be away. I hoped I would be able to return soon to be with my wife and support her through the pregnancy and see the birth of our first child.

My current situation

43. When the news came that my visa was refused I was devastated. I felt my future was disappearing, my wife, my child, it was so unreal that this nightmare was happening to me and I was helpless to do anything. I was lucky to have the help of my friends during this terrible time. I found a nice apartment in Brussels and a job as a landscape gardener in a small company. Although not speaking the language, I have managed to get by and I have been accepted and respected by my work colleagues and friends for being strong enough to get through the toughest period of my life.

44. When our baby daughter Sara Grace was born I was so happy to know all went well; that I had a healthy baby girl and my wife was fine. It was really hard for me to know I was a father and I was being congratulated for my daughter that I was not even able to hold. I felt as though I was out of the picture. This was a devastating feeling; I felt like I was being punished for my criminal convictions and my past once again. It was as if it never would come to an end. Since then Lisa has been keeping me up to date on our daughter's progress and sending me lots of photos.

My criminal offences

45. My first offence occurred when I was eighteen years old, on 12 October 1995 when I was convicted of shoplifting. On this occasion, I had spent most of the day at the pub drinking alcohol with a friend. After several hours drinking, we were both quite drunk. After leaving the pub, we were walking back to my friend's house and on the way, we passed a shopping centre.. At the time, we were both unemployed, receiving benefits from the government, and did not have enough money to spend on drinking, so we thought to try steal some alcohol. We went in to a bottle shop and tried to steal a bottle of vodka worth £10.00, but we were caught by store detectives who called the police. We were locked up for a few hours. When the matter came before the Court we pleaded guilty and were admonished.

46. My second offence occurred a few months later, on 16 January 1996 when I was convicted of attempted fraud. On this day, I was attending Court in Paisley (Glasgow) with five other people to be a witness for a friend who had been the victim of an assault. Some of us, including myself, were unemployed at the time. So that I could be paid more money for attending Court, a friend of mine obtained a stamp with a forged business name which could be stamped onto our citations stating that I was employed. I never fully considered the implications of what we planned to do, but I foolishly went through with it anyway. I had heard of other people doing the same thing and I could not see the harm in it. I was caught and charged with attempted fraud. I found myself back in court and I pleaded guilty and I was fined £200.

47. My third offence occurred on 18 February 1997, when I was convicted of possessing a knife. At the time, I was employed as a landscape gardener. Following work, I went to the pub with a group of friends, as was the case every Friday afternoon. After having a few drinks, I decided to leave the pub to go home and get changed, as I had made plans to go out with a girlfriend that evening. After arriving home, I realised that I had run out of hair gel. I had to visit the local store to purchase some gel and I wore my work coat because it was raining. Although I did not realise it at the time, I had left my work knife in my coat pocket. This knife would be used at work for cutting rope, opening bags of soil and cutting turf. I walked into the shop and I noticed that there were a number of police officers in the area. I was stopped by a police officer because there were reports of a man fitting my description in the area who was armed with a gun. I have never owned or have been in possession of a gun. The police asked me to stand against the wall for them to search me. As the police searched my clothing, they found my knife. Despite my explanation that the knife was for work purposes, I was arrested. I was escorted home and the police conducted a further search of my house but found nothing. I never had any intention of committing any wrongful act or harming or hurting anyone. I certainly had no plan to do anything foolish. Several months later, I appeared in Court for being in possession of a knife. I pleaded guilty and I was ordered to serve one hundred and twenty hours community service.

48. My fourth offence occurred later that year, on 28 October 1997 when I was carrying out community service for the previous charge of being in possession of a knife. I had remained in employment as a landscape gardener but I was to carry out my community service on Saturdays. Initially this did not clash with my work commitments, however, some months later my employer asked me to work on Saturdays. At the time, I really needed the work and I had to decide whether to attend my community service or keep my job. I missed about four Saturdays on which I was to engage in community service and, after being reprimanded by my social worker, I was ordered to continue the community service. My social worker arranged for it to be changed to Sundays so that I could continue with my employment, which I was more than happy to do.

49. My fifth offence occurred on 18 October 1999, when I was convicted of possessing ammunition. On this occasion, I was spending some time with a close friend. We were at his brother's house helping him redecorate his home. After a number of hours and a few drinks, it was getting late and I decided to leave. On my way out, my friend's brother asked me to do him a favour and dispose of some bullets for him on my way home. I stupidly agreed to take the bullets and had every intention of disposing them. I stopped at the pub on the way home where I met a few friends and later went to a friend's house to play a computer game. For all this time, I remained in possession of the bullets. I left to go home at about midnight because I had to be up early for work the next morning. I was still employed as a landscape gardener. As I was walking home alone, I was stopped by police officer who searched me. I was told that I had to be searched because it was late at night and I was alone. The officer found the bullets in my pocket which I had forgotten to dispose of earlier. I was arrested and charged, and when I appeared in Court I pleaded guilty and was fined £350. At the time I didn't believe that I was doing anything wrong. I am now fully aware that this is illegal and would never consider doing this again.

50. My most recent offence was a conviction for breach of the peace, on 25 November 1999. At the time I was still employed as a landscape gardener and I was travelling to a girlfriend's house after work with a work colleague. It was about 45 minutes away and we took the bus there. After staying a few hours we left so as to get the last bus home. While we were standing at the bus stop, 3 men approached and harassed us, thinking we were someone else. One of the men then punched me and ran away with the other men. My friend and I chased them into a police station. As I opened the door, one of the men struck me with a broken bottle across my face. I still have the scar from this on my chin. In retaliation and in an attempt to protect myself, I took off my belt, at which time the police intervened. The police failed to take into account that I had been assaulted and we were all arrested and spent the night in custody. I pleaded guilty when the matter came up in Court and I was fined £200.

51. I feel as though these things happened to someone else in another lifetime. I can safely say I am not the same person who did these terrible things. When I look back at my life I wonder if things would have been different, if my father was a different person and helped me correct my ways, or if I lived somewhere else, where I was not constantly surrounded by troublemakers who thought it was ok to be in trouble with the law.

I wanted desperately to move away from my past, away from this emotional misery. And I have. Meeting Lisa has totally changed my life. With her, I see the life I have always wanted and now I have a daughter to give the love and guidance I never had growing up.

52. I would very much like to be a husband and father being able to support them and be surrounded by my new family. I want to be a responsible person, an honest person, a good husband for my wife and a good father for my daughter. I feel that Australia has the opportunities for me to live the happy and quiet life I've always wanted with my family."

8. Both the Applicant and the Visa Applicant gave oral evidence before the Tribunal, and in the case of the Visa Applicant by telephone link to Belgium, (where he is currently working). In each case, Mr Poynder asked a few brief introductory questions; asked the witness to state that his witness statement (Exhibit A1 in the case of the Applicant and Exhibit A2 in the case of the Visa Applicant) was true and correct and then sat down. It is for this reason, that in the case of each of them, their respective witness statements are incorporated in full in this decision; in respect of each of them the relevant witness statement constituted almost entirely the evidence in chief.

9. All of the remaining exhibits, with the exceptions of Exhibits A3 and A4, could be categorised as character references in respect of the Visa Applicant. Most, although not all of them were given by members of the Applicant's family; some were furnished by friends of the Visa Applicant. Exhibits A3 and A4 are statements by the Applicant's parents. All of the exhibits were tendered without objection by Mr Allatt. In the case of some of them, and in particular the Applicant's parents, a letter by Mr Poynder to the Tribunal indicates that they would be available for cross-examination. Mr Allatt did not require the cross-examination and their statements should be accepted by the Tribunal. Having regard to my decision in this matter, I do not think it is necessary to deal in detail with the character references. Many of them refer, although in the briefest of terms only, to the Visa Applicant's criminal record in Scotland. Some of them are directed at least in part towards the genuiness of the marriage, which is not in issue. I include as one example only Exhibit A6 which is a reference by Steven Spezza, and who is one of the Applicant's brothers, dated 14 January 2003 and which reads as follows:

"My name is Steven Joseph Spezza and I was born on 23 May 1978 to the proud parents of Augusto and Graziella Spezza, themselves being migrants from Italy. I have been employed in the Banking and Finance Industry for seven years and am currently a Manager of the Client Services area in the Asset Management division for the French merchant Bank, BNP PARIBAS.

I have had the pleasure of knowing Stuart Kelly for the best part of two years through the relationship he has with his wife and my sister, Lisa Kelly (Spezza). In the time I have known Stuart, I have found him to be a honest, humble and grateful person whom is always considerate to the needs of others. I have had the privilege of being a guest at Stuart and Lisa's residence whilst travelling to London in May 2001, and found him to be a most caring and accommodating host. Further to this, I was happily in attendance at their marriage on 21 April 2002 in Sydney as well as being present at the birth of their first child, and my only niece to date, Sara Grace Kelly on 8 October 2002.

In Stuart's unfortunate absence, I have had the honour of being a surrogate father figure with my brother Paul Spezza to his child and have supported him, as well as Lisa on all levels during this time. I believe that the relationship Stuart and Lisa have with one another has been forged ever more closer by their separation, knowing only too well that there is much more responsibility in place for which he feels somewhat useless due to his distance from his family. It is here that I am keen to see his family, and our family as a whole, unite as one again.

I am aware that Stuart has a criminal record against him, for which he is not proud of. I am also aware that Stuart regrets that this has tainted his image. Through discussions I have engaged in with him, he has shown remorse towards his actions and this does not change my opinion of him in any way.

..."

10. The character references in general terms contain brief references to the Visa Applicant's criminal record. They do not generally deal with his migration offences. One exception in this regard is the reference by Paul Spezza, a solicitor, also a brother of the Applicant, who describes himself as the "proud brother-in-law of the Visa Applicant"; the fifth paragraph of the reference dated 20 January 2003 reads as follows:

"Stuart has often told me that perhaps his biggest regret to date was his failure to inaccurately complete his Incoming Passenger Declaration Cards in November 2001 and February 2002. Although at first instance this may be perceived as blatant dishonesty, I do not believe or know Stuart to be dishonest or deceiving. I believe this was an action by a person who has struggled to accept responsibility for a past that he has always regretted. Indeed, Stuart has been serving the ultimate penalty for this since 8 July 2002, the date that he was forced to leave Australia because of a breach of his visa conditions. It is unfortunate that he was force to leave behind his pregnant wife. I have no doubt that since the birth of his daughter in October 2002, he has regretted on a daily basis, a few errors in judgement that may have the capacity to effect (sic) his entire future."

11. Regarded as a whole, the references speak favourably of the Visa Applicant and generally tend to make light of what happened in the past. Although I do not think that the character references deserve great weight, they do deserve some weight, more particularly insofar as they testify to the fact that the Visa Applicant is basically a decent person whose bad behaviour in the past is behind him.

Part B. The evidence of the Visa Applicant

12. I intend in this part to deal in particular, but not exclusively, with the evidence of the Visa Applicant and in particular his criminal convictions and his alleged breaches of the Migration Act 1958.. I refer especially to clauses 44 to 49 inclusive of Exhibit A2, the details in respect of which are fleshed out by a lengthy letter dated 8 May 2002 addressed by the Visa Applicant to Julie Garrett of the Migration Branch in London (T14). The offences referred to in clauses 44 to 49 of Exhibit A2 are referred to in brief and respectively as the "theft offence", the "fraud offence", the "knife offence", the "community service offence", the "ammunition offence" and the "breach of peace offence". I deal with each of them separately. Before doing so I note that the Applicant gave evidence in point of time before the Visa Applicant did so. However, it is more convenient to deal with the evidence of the Visa Applicant first.

13. The theft offence related to the shoplifting from a bottle store of a bottle of vodka. The Visa Applicant had been drinking with a friend and they stole the bottle of vodka because (per clause 44 of Exhibit A2) they lacked money to spend on more alcohol. Both pleaded guilty and were admonished.

14. The fraud offence is sufficiently described in Exhibit A2. The Visa Applicant in his oral evidence said that the additional amount involved, and in other words gained was 50 pounds. As he noted in his oral evidence, this amount is much less than the amount of the fine of 200 pounds imposed on him. Of course the one thing has nothing to do with the other. His conduct was quite simply dishonest; it cannot be categorised as Mr Poynder suggested it should be categorised, as merely delinquent.

15. The knife offence, which resulted in community service, involved a small knife used, according to the Visa Applicant, by him when working as a landscape gardener, to open bags of fertiliser. It is similar to a Swiss army knife except the button acts purely as a locking device. It must be manually opened and closed. On the assumption that the Visa Applicant merely happened to have on him a small knife belonging to him which he used at work, it is likely in my view that it should prima facie be treated as trivial and even unfortunate. His sentence was however 120 hours of community service. The Scottish Court may, have for reasons unknown to me, have regarded the offence in a more serious light. I note in general terms that in respect of all of the criminal offences, I did not have any judicial sentencing remarks.

16. The community service offence is a prime example of simple stupidity. The Visa Applicant was confronted with a difficulty. His community service occurred on Saturday which was also a workday. He thus chose to go to work and to ignore his community service obligations on a number of Saturdays. Subsequently his social worker was able to change the community service day to Sunday and thus resolve the conflict. His stupidity arises from the fact that he could have made the same arrangement without difficulty by a simple call to his social worker but did not do so. He received an admonishment.

17. The ammunition offence falls into two categories, stupid and bizarre. These categories together with "delinquency" were mentioned especially by Mr Poynder during closing argument. A friend, (name not given), asked the Visa Applicant to dispose of five bullets of point 22 calibre. The Visa Applicant meant to throw the bullets into the river but forgot to do so. He was searched, so he said, because he was a male who was alone late at night. This answer raises more questions than it answers. Why did the friend not dispose of the ammunition himself? Why did the Visa Applicant agree to do so? Why did he ask no questions at all? To none of these and other relevant questions were there any real answers. I find it difficult to belief that in Glasgow, males who are on their own late at night are searched as a matter of course. In this case a fine was imposed.

18. The breach of peace offence, as described by the Visa Applicant, could perhaps be described as unfortunate. The Visa Applicant and a friend were attacked by three assailants. The Visa Applicant removed his belt in order to use it as a defensive weapon. All five were arrested and all five spent the night in jail. On advice from his lawyer the Visa Applicant pleaded guilty to a breach of the peace and was fined, while apparently the other four pleaded not guilty and suffered no further consequences.

19. The Visa Applicant attributed all of his criminal offences in part to the fact that he got into bad company. He spoke also of the fact that in that time he and his friends drank considerable quantities of alcohol. Some of the blame was attributed also to his parents who did not at any time discipline him or counsel him in any adequate fashion. The Visa Applicant also said that he was responsible for his own behaviour, which occurred over a period during his late teens and early twenties.

20. Mr Poynder asked me to categorise the criminal offences as generally falling within the description of "delinquency". He noted in particular that the Scottish Courts did not at any time impose a custodial sentence. Some of the offences can in my view be so categorised. Some of them were indicative of stupidity; one at least was bizarre. The fraud offence, which falls into none of these categories, was a matter of simple dishonesty.

21. The behaviour of the Visa Applicant in relation to the criminal offences was also and in some respects somewhat passive. As he described the offences, his responsibility was to some extent diminished by the fact that he was unfortunate or assisting a friend; this is so in particular in respect of the ammunition offence where his behaviour was distinctly odd.

22. The Visa Applicant grew up in Glasgow. He left school with three A levels in English, physical education and craft and design. This occurred in 1993 when he was 16. He said that he worked only at the subjects which interested him. His brother was then employed by Alba, a landscaping firm in Scotland; through his brother he got a job in landscaping with Alba. He worked for Alba for a period and then moved from one landscaping job to another and in the end, prior to his move to London, back to Alba. The evidence indicates also that there were periods of unemployment. The Visa Applicant's father was both abrasive and stern and yet also in some respects neglectful.

23. In November 2000 the Visa Applicant decided to make a fresh start in London. He was able, through a friend, to find work in scaffolding. He met the Applicant and became friendly with her; he told her about his criminal record within a month or so after meeting.

24. Prior to November 2001 the Applicant and the Visa Applicant decided to visit Australia. Travel agents arranged a visa for the Visa Applicant; the visa obtained was an electronic visa, which is issued for 12 months but with the proviso that the holder is obliged to leave Australia at the end of each period of three months. No form is required to be signed in respect of a visa of this nature.

25. When the Visa Applicant arrived in Australia for the first time in November 2001, he was presented with an incoming passenger form. He did not complete the "yes" box, which asked about criminal convictions because he was "ashamed and embarrassed" (see Exhibit A2). In oral evidence before me the Visa Applicant said that he thought that the form might be required for customs or statistical purposes but that he did appreciate the seriousness of what he had done. (The Applicant's evidence was that she and the Visa Applicant completed the forms separately and did not discuss the matter). It is clear enough on the balance of probabilities that in completing the form untruthfully and knowing that he was doing so untruthfully, the Visa Applicant breached section 234 of the Act; it must be noted that the maximum penalty for a breach of section 234 of the Act is 10 years imprisonment.

26. Returning to the United Kingdom, the parties submitted a fiancee application and where in answer to a question as to criminal convictions, the Visa Applicant correctly noted that he did have convictions (T documents page 77). In respect of this application, the Visa Applicant and Applicant acted together and were advised by migration agents (Global Migration) in London.

27. The Visa Applicant next travelled to Australia in February 2002. The Visa Applicant again completed the incoming passenger form incorrectly. He said in evidence before me that his behaviour on the first occasion, in November 2001 had not occasioned any adverse results, and it was for this reason that he acted in the same way again. It was contended on behalf of the Visa Applicant that the Respondent knew the true position as to his criminal record because the correct answer was contained in the fiancee application. Indeed Mr Poynder went on to argue that the disclosure of his convictions in the fiancee application should be counted as a favourable matter within clause 1.10 of the Direction 21 (referred to more fully later in this reasons). I do not accept either contention. To argue that to obey the law is a factor which counts in one's favour cannot be valid. The mere fact that the Respondent has knowledge of the existence of a criminal record through, in this case a fiancee application, cannot of itself constitute knowledge on the part of the Respondent's officers, who handle immigration matters at the airport and who process incoming passenger cards. The whole point of an incoming passenger card is that it acts as an instant alert; the Respondent's officer, having seen a note to the effect that there have been relevant criminal convictions, is put upon inquiry. After the inquiry he will either allow or refuse entry. It may be that this was the motivating factor of the incorrect completion of the cards. Here too the Visa Applicant, on the balance of probabilities, committed a breach of section 234 of the Act.

28. It is also alleged that the Visa Applicant became illegally present in Australia and that he was obliged to leave Australia by the Respondent. While this is undoubtedly true, I accept that this arose through a genuine misunderstanding on the part of the Applicant and the Visa Applicant who thought that the original 12 months electronic visa was just that and was unaware of the three month periodical departure requirement.

29. The last of the criminal offences occurred in 1999, something over three years ago. As indicated at the hearing it would be unfair in my view to treat the criminal offences and the migration offences as part of a continuum. On the contrary, they should in my view be regarded as being in two separate categories. As I have said, the fact that the Scottish Courts did not impose a custodial sentence indicates that the criminal offences should not be regarded in serious light. Indeed the Respondent's delegate did not regard them so; see T-documents page 10. However, they cannot properly be overlooked entirely.

30. There is no satisfactory excuse for the deliberate breaches of the Act. The position might have been different if this had occurred once. The second offence brings it into an all together different category. Breaches of section 234 of the Act are regarded as serious; see in particular clause 2.6(c) of Direction 21.

31. Having regard to all of the circumstances, I consider that I have no option but to find that the past general conduct of the Visa Applicant has been such that he does not pass the character test.

Part C - The evidence of the Applicant.

32. The Applicant's evidence was straightforward. She completed her HSC in 1990. Her marks were not sufficient to get her into a university or a TAFE. She took a one-year diploma course in graphic design at a private college. She worked for a number of years thereafter for the same firm in graphic design and printing.

33. The Applicant's evidence as to trips to Sydney was largely in accordance with the evidence of the Visa Applicant. That applies also in relation to the wedding, which took place in April 2002. Their daughter Sara Grace ("Sara") was born on 28 October 2002; (the Applicant made one additional trip to Australia but that trip is not relevant for the purposes of this decision).

34. The Visa Applicant's parents and also his brother, his brother's girlfriend and his brother's small daughter came to Australia for the wedding. The Applicant and the Visa Applicant who had at first lived with her parents when they came to Australia, took a rented home (paid for out of their savings) and at which the Visa Applicant's family stayed. About a week after the wedding, the Visa Applicant's family abruptly left. They were offended by what they perceived as a "lack of respect". Since that time the Applicant has been estranged from his family in Scotland. The Visa Applicant in his evidence said that he phoned both his father and brother to complain about their behaviour, and has not spoken to them since. I do not think that I have heard all of the circumstances leading up to this family estrangement, but I should accept that the Visa Applicant's family is indeed estranged from him.

35. Since the birth of Sara, the Applicant has (unsuccessfully) sought a single parent allowance in Australia. She has been unable to do so because the Visa Applicant earns too much. She does receive social security in the form of a Newstart Allowance, which gives her about $330 per fortnight. According to the Applicant, the Visa Applicant has twice sent her $500 by way of maintenance. (The Visa Applicant's evidence was that he has sent her two payments in 2002 aggregating about $600 but nothing in 2003 because his earnings after basic living expenses have not permitted him to do so. He is working in landscaping in Belgium in circumstances where his earnings are directly related to hours worked and where his earnings are less when he cannot work because of bad weather. The Visa Applicant also said that he was aware of the fact that the Applicant was receiving social security).

36. The Applicant is a member of a large and supportive family of Italian origin. They are to be contrasted with the Visa Applicant's family which is, as I have said, estranged and so that support from this source would be limited if it is available at all.

37. The Applicant strongly wishes to be reunited with her husband, the Visa Applicant, (who has never seen Sara), in Sydney. She wants to bring up Sara in Australia's favourable climate and with the aid of her supportive family. She accepted that there is a possibility of their being reunited in the United Kingdom or perhaps Belgium but would, understandably enough, greatly regret the loss of her family's support.

Part D - DIRECTION 21(VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE MIGRATION ACT 1958); DIRECTION NO 21 ("DIRECTION 21")

38. In this, Part D of this decision, numbered clauses should be construed as references to numbered clauses in Direction 21. The primary considerations are set out in clause 2.3, which provides as follows.

"2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."

39. Clause 2.3 (a) of Direction 21 must be considered in conjunction with clause 2.5 of Direction 21, which reads as follows:

"2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."

40. As I noted at the hearing, I do not think that the risk of recidivism is high. The Respondent's delegate (T-documents page 10) did not think that the criminal offences should be treated in a serious light. I agree with that view and note also that it is likely that the behaviour, to which the criminal record relates, is in the past. As to the breaches of the Act referred to previously in this decision, it is my view that they cannot be regarded lightly (and more particularly having regard to clause 2.6 (c) of Direction 21) but at the same time they rank, in the experience in the Tribunal, at the low end of the scale.

41. Deterrence is undoubtedly a factor. Mr Poynder drew my attention to the decision of Gray J in Patel v Minister for Immigration [2002] AATA 78 at page 47 where Gray J said:

" In the consideration of the cancellation of existing visas held by such offenders, or the possible grant of new visas to them, the decision-maker must have in mind the need to bring home to other non-citizens already in Australia the consequences to them of conduct that would cause them not to pass the character test. In this way, non-citizens in Australia will be dissuaded from such conduct if they wish to remain in Australia, either by retaining their existing visas or by applying successfully for subsequent visas. The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote."

Having regard to that decision, the criminal offences should be given little if any weight. Moreover, I do not think that the incoming passenger card breaches are sufficiently serious to warrant a finding that the deterrence factor requires the refusal of a visa.

42. As to the expectations of the Australian community (and see clause 2.12 of Direction 21), I accept of course that the Australian community would expect non-citizens to obey Australian law. At the same time, the decision of Deputy President McMahon in Leha v Minister for Immigration [2000] AATA 1054 indicates clearly enough that there is "a general expectation in the community that the Act would be administered fairly and humanely".

43. I note in general, in connection with clause 2.3 of Direction 21, that I do not think that the Australian community requires protection against the Visa Applicant.

44. The interests of Sara constitute a prime consideration. Her best interests would prima facie be best served by her being with both her parents. And in this context Australia as her home is preferable to the United Kingdom or Belgium especially when one considers that the Applicant has the support of a caring family while the Visa Applicant has nothing of the kind. It is conceivable in my view that the Applicant will need their support, and perhaps including financial support. The Visa Applicant has not yet demonstrated that he is a good provider; it is possible that his lack of qualifications will inhibit his ability to become so. (There is on the evidence before me no basis upon which the contrary assertion in clause 43 of Exhibit A1 is tenable). I accept his evidence that his current earnings are not high and that he is not finding it easy to make ends meet. Nevertheless, some financial support, however minimal, might have been provided during the current year.

45. Hardship under clause 2.17 (d) is not as strong in this case as it is in many spouse visa cases. This is because the Applicant and the Visa Applicant could be reunited in the United Kingdom or Belgium, but not in such event with the support level be available to them in Australia from the Applicant's family.

46. The Visa Applicant's record thus far has been undistinguished. An unremarkable career at school was followed by a number of landscaping jobs (and it would not seem that they were jobs at a high level) punctuated by periods of unemployment, and during which period the criminal offences occurred. In London the Visa Applicant worked in scaffolding; again that job would not seem to be at a high level. After meeting the Applicant in London and becoming involved with her, the Visa Applicant came to Australia on two occasions. There were three occasions on which he was called upon to answer questions in official forms and documents and he twice answered dishonestly; the occasion on which he answered honestly was the occasion when he acted in conjunction with the Applicant. However, in giving oral evidence, the Visa Applicant presented rather better than his record would suggest. He was reasonably articulate and I believe that his evidence was honest. I have been influenced by some extent by the warmth of the references provided. Even allowing for the fact that the criminal offences, and for that matter the offences against the Act were, when they were dealt with at all, played down, a number of people in different countries and in different walks of life, spoke well of the Applicant. As Mr Poynder contended, the statements of the Applicant's parents (Exhibits A3 and A4) are of particular relevance in this regard.

47. The balancing process required in order to exercise the discretionary powers contained in part 2 of Direction 21 is not, in this case, an easy one. I have found that the Visa Applicant does not pass the character test. It must be remembered in this context that the relevant test contained in section 501(6)(c) refers in subsection (i) to the "person's past and present criminal conduct" and in subsection (ii) to "the person's past and present general conduct". Even on the basis that the criminal offences and the Act offences are treated as severable, the conduct of the Visa Applicant has been such that no other conclusion is in my view possible. That said, I have come to the conclusion that the balancing process referred by Part 2 of Direction 21 results in an exercise of the discretion in favour of the Visa Applicant. As I have said, the criminal offences were not serious and in any event they happened some considerable time ago. The offences against the Act are more recent but they are, again as I have said, at the lower end of the scale. The interests of Sara indicate that she would be best off with both her parents in Australia and thus having the support of the Applicant's family.

48. In the circumstances, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Stuart Patrick Kelly.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed: .......................................................................................

Associate

Date of Hearing 24 February 2003

Date of Decision 18 March 2003

Counsel for the Applicant Mr N Poynder

Solicitor for the Respondent Mr M Allatt

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